245 F.2d 21 (9th Cir. 1957), 14863, United Press Assn's v. Charles

Docket Nº:14863.
Citation:245 F.2d 21
Party Name:UNITED PRESS ASSOCIATIONS, a Corporation, Appellant, v. Sidney Dean CHARLES, Paul S. Charles and Patricia Charles and the Pioneer Printing Company, a Corporation, Appellees.
Case Date:March 01, 1957
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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245 F.2d 21 (9th Cir. 1957)

UNITED PRESS ASSOCIATIONS, a Corporation, Appellant,


Sidney Dean CHARLES, Paul S. Charles and Patricia Charles and the Pioneer Printing Company, a Corporation, Appellees.

No. 14863.

United States Court of Appeals, Ninth Circuit.

March 1, 1957

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[Copyrighted Material Omitted]

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John H. Dimond, Juneau, Alaska, and Baker, Hostetler, Patterson & Wick, Cleveland, Ohio, for appellant.

Faulkner, Banfield & Boochever, Juneau, Alaska, and Herbert C. Faulkner, San Francisco, Cal., for appellee.

Before HEALY, POPE and FEE, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

This case balances upon the single question of whether a civil case involving over twenty dollars, which has been fairly and impartially tried by the court sitting with a jury, should be reversed because of a procedural technicality claimed to vitiate the order of the court calling a jury.

United Press 1 brought action for damages, setting up alleged breach of contract and loss of profit over the time the contract, according to its terms, had yet to run. Charles 2 answered alleging cancellation for breach by United Press. A counterclaim was also set up in the answer. The reply admitted this amount was due to Charles.

The jury trial was held under the circumstances hereinbelow outlined. Neither Charles nor United Press asked for a jury within ten days after the issues were made up. 3 Thereafter, Charles filed a motion for jury trial. The court denied this motion on September 24, 1954. On April 12, 1955, the court entered an order directing a jury trial sua sponte. United Press objected, but went to trial. The jury found a verdict for United Press with damages at $368.70 and a verdict for Charles on the admitted counterclaim for $368.70. Judgment was entered on these general verdicts.

It is now and has always been agreed by all members of this panel that this judgment must be affirmed if there were no defect in placing the cause on trial by a jury.

Appellant takes the position that the case must be reversed because there was a jury trial, instead of a trial by the judge alone.

There is no express prohibition of jury trial in the Constitution, treaties or laws of the United States. There is no express denial of the right of a trial judge to call a jury in any civil trial in the Federal Rules of Civil Procedure. The emphasis in Rules 38 and 39 is upon procedure whereby a 'party' may be deprived of his right to jury trial guaranteed by the Seventh Amendment to the Constitution. At common law, prior to the adoption of the Federal Constitution, trial by jury in a case for breach of contract would have been the usual and normal, if not the inevitable, course.

Appellant now insists that these Rules gave him an absolute right to trial by the judge sitting without a jury. Trial by jury therefore was irremedial error. Therefore, the case must be reversed on this ground alone. So the argument runs. Appellant arrives at this result by a highly technical construction of the text of the pertinent Rules. But it would seem that this is rationalization flatly contradicted by the positive declaration of intent contained in the first of these Rules that the 'right of trial by jury as declared by the Seventh Amendment to the Constitution * * * shall be preserved to the parties inviolate.' Had the Rules contained any express prohibition of jury trial under any set of circumstances, it is probable that the Supreme Court of the United States would not have adopted such provisions, and it is equally probable that Congress would not have approved them. 4

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The position of appellant in this case is untenable. 5 The gist of its theory is that by a technical slip Charles, as a party, had waived a valuable constitutional right. This right was not revived when Charles, as a party, filed a motion for jury trial in accordance with the Rules, because the court denied it. Thereafter, it is said not even the court could restore to Charles his right to jury trial, even though the motion by Charles was never withdrawn. 6

If waiver is thus so potent, it may be applied also to United Press. United Press chose to do business in Alaska. When it filed complaint in the local federal court as plaintiff, 7 it contemplated the acceptance of the judgment of the local community as expressed by a jury drawn from the vicinage. By a procedural situation, it was tentatively relieved of that necessity. But the trial judge entered an order for jury trial. Appellant objected. The point that was really made in the objection by United Press was not that it resisted jury trial, but that witnesses should have been called in that instance instead of depositions of certain witnesses which it presented. However, it was at the same time opposing delay because it had brought two witnesses from outside. The gravamen of its complaint was that the order was changed on the eve of

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trial. However, it made no showing as to hardship by affidavit or sworn testimony before the court. The judge might have postponed the case, transferred it to another court or taken some other action if this had been done. Indeed, it is possible he might have called another judge to take his place. However, we see nothing in the circumstances which suggests any possible disqualification. And it must be remembered that a substitute judge might, as a very practical matter, be difficult to obtain in Alaska. But it is apparent United Press did not desire delay either. In any event, appellant went to trial before a jury and did not stand on the objections.

United Press was plaintiff. It was under duty to refuse to go to trial before a jury, if it intended to rely upon this procedural objection. If then the judge had dismissed its action for failure to prosecute, the existence of a personal right not to go to trial before a jury could have been tested. 8 United Press has now gambled on a jury trial and lost. By its conduct, any right it had was waived. By its conduct and acquiescence, United Press also brought to bear the one constitutional clause which has any direct bearing on this situation. In actions at law involving more than twenty dollars, the Federal Constitution provides:

'No fact tried by jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.' Seventh Amendment.

We think this mandate binding upon us. The case was tried before a jury. The verdicts and the judgment founded thereon are finalities.

If the personal right to trial by judge alone, claimed here, was procedural, United Press could waive it. As we have seen, United Press did waive it. Appellant, as it needs must, then argues that it could not waive the point, because the trial judge had no power to grant trial by jury. This proposition is amusing and certainly paradoxical. The drafters of the Rules announce that the right of a party to jury trial shall be preserved inviolate. But the Rules provide he can waive such right. United Press claims that these provisions have metamorphosed the right of a party to have a trial by jury, which can be waived, into a right of the opposite party to trial by the judge alone, which cannot be waived. Such abracadabra is not only impotent, but utterly unconvincing.

The only explanation for such a result would be that the judge had no jurisdiction to order jury trial. The complete refutation of this sophistry is that there is no provision anywhere expressly forbidding the judge to call a jury, according to common law usage, as we have seen. Specifically, the entire emphasis of the Federal Rules of Civil Procedure is upon nonaction by the parties.

In any event, by definition of the Rule, the judge had power to grant trial by jury when Charles made a motion therefor. It can hardly be contended the judge lost jurisdiction when the motion by Charles for jury trial was denied. Although the latter was not insisting upon jury trial, he never withdrew the motion. The denial did not change the record. The denial was not unchangeable as a decree of Rhadamanthus. The judge could have set aside the denial and granted a jury on the eve of trial. But, it is objected, he did not so set aside the denial, but granted jury trial sua sponte. If the judge had jurisdiction to set aside the order, he had jurisdiction to grant trial by jury.

It is necessarily now claimed that a procedural trap had been perfected, from which the judge could not escape even in the interests of justice unless he followed a magical formula without verbal or clerical deviation. Ali Baba, in the case of the Forty Thieves, escaped like frustration

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by remembering, even in his haste, to repeat the exact incantation of 'Open Sesame.' But he would have been caught in a similar procedural device if he had exclaimed 'Open Rice' or 'Open Barley.' It is difficult to believe that the advocates of the liberal procedure, which was supposed to free courts and litigants from antique shackles of formalism, could agree to a reversal for such a procedural deviation. This action, before the beginning of the trial, had less effect on the merits than the framing of issue based upon a casual clause of the surrebutter. Medieval scholasticism could furnish no more pedantic example of the disregard of actuality in pursuit of logic.

The setting aside of this verdict for purely procedural defect would be an archaism as flagrant as that of Baron Surrebutter. The very purpose of the Federal Rules of Civil Procedure was to eliminate complaints as to 'the technicalities of the law, the subtleties of practice and the involvements of procedure.'

'The entire purpose of the rules was to strike from judges and litigants useless shackles of procedure to the end that a fair trial of the essential questions could be had. The trial court is vested with broad discretionary powers so long as its action is not inconsistent with...

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